Sunday, October 4, 2009

Police officers and freedom of speech (part two)

LEAP speaker Jay Fisher continues this multi-part series about law enforcement officers and free speech. In this part he examines five states - Georgia, New Hampshire, New York, Montana and Missouri. If you have some knowledge of the case law in other states please share your thoughts in the comments section.GEORGIA

The Georgia Constitution, Art. I, § I, Para. V states that: “No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty. “

Georgia law is particularly thin on case law to direct government employees speaking about public interest matters. The author's search revealed only two cases which remotely addressed the topic of government workers and public expressions – and one of these was from 1979! This may be caused by Georgia's strong right to work heritage and the failure of employees to challenge terminations for any reason (never mind free speech issues). However, a review of the more recent decision [Palmer v. Stewart County Sch. Dist., ___ F. Supp. 2D ___ (M.D. Ga. June 17, 2005)], indicates that Georgia courts would likely strictly follow the Garcetti and Buazard models that were explained in part one of this series.

NEW HAMPSHIRE

The State of New Hampshire has a long tradition of libertarian influence. In deference to this history, the state codified the right of public employees to speak on matters of public interest:

Notwithstanding any other rule or order to the contrary, a person employed as a public employee in any capacity shall have a full right to publicly discuss and give opinions as an individual on all matters concerning any government entity and its policies. It is the intention of this chapter to balance the rights of expression of the employee with the need of the employer to protect legitimate confidential records, communications, and proceedings. RSA 98-E:1.

The state appellate court has interpreted this rule to mean that New Hampshire provides broader protection than that afforded under the United States Constitution. Appeal of Booker, 139 N.H. 337, 653 A.2d 1084 (1995). However, the law still specifies that the public employee must be speaking as an individual and not as a spokesperson on behalf of the agency itself. Id.

NEW YORK

Like New Hampshire, state history and tradition play large roles in the formation of New York’s laws governing the ability of public employees to speak on public issues. New York has a long history of employee protection and labor organization. Thus, they have codified the ability of public employees to speak on special interest issues and the wording is rather liberal. Civil Service Law 107(1) expressly prohibits a government agency from appointing, selecting or removing a person from government service based upon his or her “political opinions or affiliations.” Hamilton v Brennan, 119 NYS2d 83 (1953). However, this law is limited to members of the civil service – those employees in exempt positions or non-competitive class employment would not be covered by the law.

MONTANA

The Montana Constitution provides that: “No law shall be passed impairing the freedom of speech or expression. Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.” Mont. Const., Art. II § 7. Furthermore, the state code provides that it “is an unlawful discriminatory practice for the state or any of its political subdivisions…to refuse employment to a person, to bar a person from employment, or to discriminate against a person in compensation or in a term, condition, or privilege of employment because of that person's political beliefs.” Mont. Code Anno., § 49-2-308 (1)(c). Montana courts have interpreted the law along the United States Supreme Court’s decision in Connick: “when a public employee speaks out not as a citizen upon matters of public concern, but instead as an employee upon matters of only personal interest, the courts will not review the wisdom of a personnel decision taken by a public agency. Conversely, it seems proper to hold that if the public employee does speak on a matter of public concern as a citizen, the public employee is exercising a cherished First Amendment right.” Taliaferro v. State, 235 Mont. 23, 29, 764 P.2d 860 (1988).

MISSOURI

Missouri is an interesting case example because the written code provides very broad protection, but the case law narrowly applies the language to diminish the scope of protected speech. The state constitution says that, “no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty…” Mo. Const. Art. I, § 8. However, the state appellate courts allow public employees to be publicly reprimanded for speech made in government forums under the idea that such punishment does not impinge free speech rights because the employee was ultimately not deprived of any of the privileges of his office. Vorbeck v. McNeal, 560 S.W.2d 245 (Mo. Ct. App. 1977). A troubling aspect in this case is the appellate court did not address at all the potential chilling effect such punishment may have on employees who speak on public matters.